Post Inequality Promotion

Only a few days (June 30 deadline) for applications to the first Institute for Open Leadership. I don’t know anything about it other than what’s at the link, but from what I gather it involves a week-long workshop in the San Francisco area on open policy and ongoing participation in an online community of people promoting open policies in their professional capacities, and is managed by an expert in the field, Timothy Vollmer. Read an interview with Vollmer(wayback link to spare you the annoying list-gathering clickthrough at the original site, not least because its newsletter is an offender).

Now, why open policy is the most promising knowledge regulation reform (I wrote “copyright” in the title, but the concept is applicable to mitigating other IP regimes, e.g., patent, and pro-commons regulation not based on mitigating IP):

Most proposed reforms (formalities can serve as an example for each mention following) merely reduce inefficiencies and embarrassments of freedom infringing regimes in ways that don’t favor commons-based production, as is necessary for sustainable good policy. Even if not usually conceptualized as commons-favoring, open policy is strongly biased in that direction as its mechanism is mandate of the terms used for commons-based production: open licenses. Most proposed reforms could be reshaped to be commons-favoring and thinking of how to do so a useful exercise (watch this space) but making such reshaping gain traction, as a matter of discourse let alone implementation, is a very long-term project.

The concept of open policy is scalable. There’s no reason as it gains credence to push for its expansion to everything receiving public or publicly interested support, including high and very low culture subsidy. At the extreme, the only way to avoid being subject to some open policy mandate would be to create restricted works in an IPer colony, isolated from the rest of humanity.

In order to make open policy gain much more credence than it has now, its advocates will be forced to make increasingly sophisticated public policy arguments to support claims that open policy “maximizes public investment” or to shift the object of maximization to freedom and equality. Most proposed reforms, because they would only reduce inefficiency and embarrassment, do not force much sophistication, leaving knowledge regulation discourse rotting in a trough where economists abandoned it over a century ago.

Open policy implementation has the potential to destroy the rents of freedom infringing industries. For sustainable good policy it is necessary to both build up the commons as an interest group and diminish interest groups that depend or think they depend on infringing freedom. It is possible for open policy to be gamed (e.g., hybrid journal double dipping). As troubling as that is, it seems to me that open policy flips which side is left desperately clawing for loopholes contrary to the rationale of policy. Most reform proposals at least implicitly take it as a given that public interest is the desperate side.

Open policy does not require any fundamental changes to national law or international treaties, meaning it is feasible, now. Hopefully a few reformists have generally grasped the no-brainer concept that a benefit obtained today is more valuable than one obtained in the future, e.g., in 95 years. It also doesn’t mean that open policy is merely a “patch” in contrast the “fixes” of most proposed reforms — which aren’t fixes anyway, but rather mitigations of the worst inefficiencies and embarrassments of freedom infringing regimes. If open policy is a patch, it is a one that helps the body of knowledge regulation to heal, by the mechanisms above (promoting commons production and discourse, diminishing freedom infringing interests).

…

In my tradition of critical cheering, consider the following Open Policy Network statement:

We have observed that current open policy efforts are decentralized, uncoordinated and insular; there is poor and/or sporadic information sharing.

As illustrated by the lack of the Open Source Definition or any software-centric organizations on Open Policy Network lists of its guiding principles and member organizations. Fortunately software is mentioned several times, for example:

If we are going to unleash the power of hundreds of billions of dollars of publicly funded education, research, data, and software, we need broad adoption of open policies.

Hopefully if the Open Policy Network is to become an important venue for moving open policy forward, people who understand software will get involved (by the way, one of the ways “publicly funded” is scalable is that it properly includes procurement, not only wholly funded new resources), e.g., FSFE and April. I know talking about software is scary — because it is powerful and unavoidable. But this makes it a necessity to include in any serious project to reform the knowledge economy and policy. Before long, everything that is not software or suffused with software will be obsolete.

I begin with and come back to a few times Creative Commons licenses as I was on the panel as a “senior fellow” for that organization, but apart from such emphasis and framing, this is more or less what I think. I got about 80% of the below in on the panel, but hopefully still worth reading even for attendees.

A few follow-up thoughts after the notes.

…

Creative Commons licenses, like other public licenses, grant permissions around copyright, but as CC’s statement on copyright reform concludes, licenses “are not a substitute for users’ rights, and CC supports ongoing efforts to reform copyright law to strengthen users’ rights and expand the public domain.” In the context of APIs, default policy should be that independent implementation of an API never require permission from the API’s designer, previous implementer, or other rightsholder.

Without such a default policy of permission-free innovation, interoperability and competition will suffer, and the API community invites late and messy regulation at other levels intending to protect consumers from resulting lock-in.

Practically, there are things API developers, service providers, and API consumers can do and demand of each other, both to protect the community from a bad turn in default policy, and to go further in creating a commons. But using tools such as those CC provides, and choosing the right tools, requires looking at what an API consists of, including:

API specification

API documentation

API implementations, server

API implementations, client

Material (often “data”) made available via API

API metadata (e.g, as part of API directory)

(depending on construction, these could all be generated from an annotated implementation, or could each be separate works)

and what restrictions can be pertinent:

Copyright

Patent

(many other issues can arise from providing an API as a service, e.g., privacy, though those are usually not in the range of public licenses and are orthogonal to API “IP”, so I’ll ignore them here)

1-4 are clearly works subject to copyright, while 5 and 6 may or may not be (e.g., hopefully not if purely factual data). Typically only 3 and 4 might be restricted by patents.

Standards bodies typically do their work primarily around 1. Relatively open ones, like the W3C, obtain agreement from all contributors to the standard to permit royalty-free implementation of the standard by anyone, typically including a patent license and permission to prepare and perform derivative works (i.e., copyright, to extent such permission is necessary). One option you have is to put your API through an existing standards organization. This may be too heavyweight, or may be appropriate yet if your API is really a multi-stakeholder thing with multiple peer implementations; the W3C now has a lightweight community group venue which might be appropriate. The Open Web Foundation’s agreements allow you to take this approach for your API without involvement of an existing standards body​. Lawrence Rosen has/will talk about this.

Another approach is to release your API specification (and necessarily 2-4 to the extent they comprise one work, ideally even if they are separate) under a public copyright license, such as one of the CC licenses, the CC0 public domain dedication, or an open source software license. Currently the most obvious choice is the Apache License 2.0, which grants copyright permission as well as including a patent peace clause. One or more of the CC licenses are sometimes suggested, perhaps because specification and documentation are often one work, and the latter seems like a “creative” work. But keep in mind that CC does not recommend using its licenses for software, and instead recommends using an open source software licenses (such as Apache): no CC license includes explicit patent permission, and depending on the specific CC license chosen, it may not be compatible with software licenses, contrary to goal of granting clear permission for independent API implementation, even in the face of a bad policy turn.

One way to go beyond mitigating “API copyrightability” is to publish open source implementations, preferably production, though reference implementations are better than nothing. These implementations would be covered by whatever copyright and patent permissions are granted by the license they are released under — again Apache 2.0 is a good choice, and for software implementation CC licenses should not be used; other software licenses such as [A]GPL might be pertinent depending on business and social goals.

Another way to create a “thick” API commons is to address material made available via APIs, and metadata about APIs. There, CC tools are likely pertinent, e.g., use CC0 for data and metadata to ensure that “facts are free”, as they ought be in spite of other bad policy turns.

To get even thicker, consider the architecture, for lack of a better term, around API development, services, and material accessed and updated via APIs. Just some keywords: Linked Open Data, P2P, federation, Lots of Copies Keep Stuff Safe, collaborative curation.

I’m fairly familiar with Samuelson’s and Rosen’s work and don’t have comments on what they said on the panel. If you want to read more, I recommend among Samuelson’s papers The Strange Odyssey of Software Interfaces and Intellectual Property Law which shows that the “API copyright emergency” of the panel title is recurrent and intertwined with patent, providing several decades of the pertinent history up to 2008. Contrary to my expectation in the notes above, Rosen didn’t get a chance to talk about the Open Web Foundation agreements, but you can read his 2010 article Implementing Open Standards in Open Source which covers OWF.

Hurst is a lawyer for Orrick representing Oracle in the Oracle v. Google case, so understandably advocated for API copyright, but in the process made several deeply flawed assertions could have consumed the entire duration of the panel, but Berlind did a good job of keeping the conversation moving forward. Still, I want to mention two high level ones here, my paraphrases and responses:

Without software copyright the software economy would go away. This is refuted by software development not for the purposes of selling licenses (which is the vast majority of it), especially free/open source software development, and services (e.g., API provision, the source of which is often never published, though it ought be, see “going beyond” recommendations above). Yes the software economy would change, with less winner-take-all monopoly and less employment for Intellectual Parasite lawyers. But the software economy would be huge and very competitive. Software is eating the world, remember? One way to make it help rather than pejoratively eat the world is to eject the parasites along for the ride.

Open source can’t work without software copyright. This is refuted by 1) software source sharing before software copyright; 2) preponderance of permissively licensed open source software, in which the terms do not allow suing downstream developers who do not share back; 3) the difficulty of enforcing copyleft licenses which do allow for suing downstream developers who do not share back; 4) the possibility of non-copyright regulation to force sharing of source (indeed I see the charitable understanding of copyleft as prototyping such regulation; for perspective on the Oracle v. Google case from someone with a more purely charitable understanding of copyleft, see Bradley Kuhn); and 5) demand and supply mechanisms for mandating sharing of source (e.g., procurement policies, distribution policies such as Debian’s).

These came up because Hurst seemed to really want the audience to conflate software copyright in general (not at issue in the case, settled in a bad place since the early 1980s) and API copyright specifically. Regarding the latter, another point which could have been made is the extent to which free/open source software has been built around providing alternatives to proprietary software, often API-compatible. If API copyright could prevent compatible implementation without permission of any sort, open source, competition, and innovation would all be severely hampered.

…

There is a recent site called API Commons, which seems to be an API directory (Programmable Web, which ran the conference, also has one). My general suggestion to both would be to implement and facilitate putting all elements of APIs listed above in my notes in the commons. For example, they could clarify that API metadata they collect is in the public domain, publish it as Linked Open Data, and encourage API developers and providers they catalog to freely license specifications, documentation, implementations, and data, and note such in the directories.

…

In order to get a flavor for the conference, I listened to yesterday morning’s keynotes, both of which made valiant attempts to connect big picture themes to day to day API development and provision. Allow me to try to make connections back to “API commons”.

Sarah Austin, representing the San Francisco YMCA, pointed out that the conference is near the Tenderloin neighborhood, the poorest in central San Francisco. Austin asked if kids from the Tenderloin would be able to find jobs in the “API economy” or would they be priced out of the area (many tech companies have moved nearby in the last years, Twitter perhaps the best known).

Keith Axline claimed The Universe Is Programmable. We Need an API for Everything, or to some extent, that learning about the universe and how to manipulate it is like programming. Axline’s talk seemed fairly philosophical, but could be made concrete with reference to the Internet of Things, programmable matter, robots, nanobots, software eating the world … much about the world will indeed soon be software (programmable) or obsolete.

Axline’s conclusion was in effect largely about knowledge policy, including mourning energy wasted on IP, and observing that we should figure out public support for science or risk a programmable world dominated by IP. That might be part of it, but keeps the focus on funding, which is just where IP advocates want it — IP is an off-the-balance-sheets, “free” taking. A more direct approach is needed — get the rules of knowledge policy right, put freedom and equality as its top goals, reject freedom infringing regimes, promote commons (but mandating all these as a condition of public and publicly interested funding is a reasonable starting place) — given these objectives and constraints, then argue about market, government, or other failure and funding.

Knowledge policy can’t directly address the Austin’s concerns in the Tenderloin, but it does indirectly affect them, and over the long term tremendously affect them, in the Tenderloin and many other places. As the world accelerates its transition from an industrial to a knowledge dominated economy, will that economy be dominated by monopoly and inequality or freedom and equality? Will the former concentrations continue to abet instances of what Jane Jacobs called “catastrophic money” rushing into ill-prepared neighborhoods, or will the latter tendencies spread the knowledge, wealth, and opportunity?

Celebrating creativity is a good thing, but when you’re a hammer, everything looks like a nail. For the World Intellectual Property Organization, it may seem like creativity and “intellectual property” are inextricably linked. That’s not the case. In the spirit of adding to the conversation, let’s honor all the creativity and industry that is happening without a dependence on a system intellectual property.

There’s an important reason to encourage and promote creativity outside the bounds of increasingly restrictive laws: to the extent such creativity succeeds, it helps us re-imagine the range of desirable policy and reduces the resources available to enclosure industries to lobby for protectionism — in sum shifting what is politically possible. It’s incumbent on all of us who want to encourage creativity to continue to explore and utilize structures that reward creators without also restricting speech.

Comedy, Fashion, Cooking, Magic, and More

In the areas in which intellectual freedom is not typically infringed, there is tremendous innovation and consistent creativity outside of the intellectual property system. Chefs create new dishes, designers imagine new styles, comedians write new jokes, all without a legal enforcement mechanism to restrict others from learning and building on them.

There may be informal systems that discourage copying—the comedy community, to take one example, will call out people who are deemed to be ripping off material—but for the most part these work without expensive litigation, threats of ruinous fines, and the creation of systems of surveillance and censorship.

Contributing to a Creative Commons

The free software movement pioneered the practice of creating digital media that can legally and freely be shared and expanded, building a commons. The digital commons idea is being pushed in more areas than ever before, including culture, education, government, hardware design, and research. There are some projects we’re all familiar with — Wikipedia is perhaps the most prominent, creating an expansive and continuously updated encyclopedia that is freely accessible under permissive terms to the entire world.

Focusing on this year’s World IP Day theme of movies, there have been some impressive contributions the commons over the years. Nina Paley’s feature animation Sita Sings The Blues, which she released into the public domain, has spread widely, inspired more work, and earned her money. The short films from the Blender Foundation have demonstrated cutting-edge computer graphics made with free software and, though they’ve sometimes been on the receiving end of bogus copyright takedowns, have been watched many millions of times.

Kickstarting and Threshold Pledges

Finally, crowdfunding platforms like Kickstarter and Indie-Go-Go have made a major splash in the last few years as another fundraising model that can complement, or even replace, copyright exclusivity. These platforms build on theoretical framework laid out by scholars like John Kelsey and Bruce Schneier in the influential “Street Performer Protocol” paper, which set out to devise an alternative funding system for public domain works. But most crowdfunded works are not in the commons, indicating an need for better coordination of street patrons.

Looking at movies in particular: Kickstarter alone has enabled hundreds of millions of dollars of pledges, hundreds of theatrical releases, and seven Oscar-nominated films (including Inocente, winner of the Best Documentary Short category). Blender Foundation is currently crowdfunding its first feature length film, Gooseberry.

***

The conceit of copyright and other “intellectual property” systems is that they can be calibrated to promote the progress of science and the useful arts. But the reality of these systems is corruption and rent seeking, not calibration. The cost is not just less creativity and innovation, but less freedom and equality.

It’s clear from real world examples that other systems can achieve the goal of promoting creativity, progress, and innovation. We must continue to push for both practice and policy that favors these systems, ultimately rendering “intellectual property” a baffling anachronism. In a good future, a policy-oriented celebration of creativity and innovaion would be called World Intellectual Freedom Day.

[-<p>Today, April 26,-]{+<p>April 26+} is the day marked each year since 2000 [-as "Intellectual Property Day"-] by the <a href="https://www.eff.org/issues/wipo">World Intellectual Property Organization [-(WIPO)</a>. There are many areas where EFF has not historically agreed with WIPO,-]{+(WIPO)</a> as "World Intellectual Property Day", in+} which [-has traditionally pushed-]{+WIPO tries to associate its <a href="https://www.eff.org/deeplinks/2013/03/ustr-secret-copyright-agreements-worldwide">worldwide pushes+} for more [-restrictive agreements and served as a venue for <a href="https://www.eff.org/deeplinks/2013/03/ustr-secret-copyright-agreements-worldwide">domestic policy laundering</a>, but we agree that celebrating-]{+enclosure</a> with creativity.</p>+}{+<p>Celebrating+} creativity is a good [-thing.</p>-][-<p>As the saying goes, though:-]{+thing, but+} when you're a hammer, everything looks like a nail. For the World Intellectual Property Organization, it may seem like creativity and <a href="https://www.eff.org/issues/intellectual-property/the-term">"intellectual property"</a> are inextricably linked. That's not the case. In the spirit of adding to the conversation, [-we'd like to-]{+let's+} honor all the creativity and industry that is happening <i>without</i> a dependence on a system intellectual property.</p>
<p>There's an important reason to encourage {+and promote+} creativity outside the bounds of increasingly restrictive [-laws, too. As Ninth Circuit Chief Justice Alex Kozinski eloquently explained in <a href="http://notabug.com/kozinski/whitedissent">a powerful dissent</a> some 20 years ago, pushing only for more IP restrictions tips a delicate balance against creativity:</p>-][-<blockquote><p>Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on-]{+laws: to+} the [-works-]{+extent such creativity succeeds, it helps us re-imagine the range+} of [-those who came before. Overprotection stifles the very creative forces it's supposed-]{+desirable policy <i>and</i> reduces the resources available+} to [-nurture.</p></blockquote>-][-<p>It's-]{+enclosure industries to lobby for protectionism -- in sum shifting what is politically possible. It's+} incumbent on all of us who want to encourage creativity to continue to explore {+and utilize+} structures that reward creators without also restricting speech.</p>
<h3>Comedy, Fashion, Cooking, Magic, and More</h3>
<p>In the areas [-known as copyright's "negative spaces,"-]{+in which intellectual freedom is not typically infringed,+} there is tremendous innovation and consistent creativity outside of the intellectual property system. Chefs create new dishes, designers imagine new styles, comedians write new jokes, all without a legal enforcement mechanism to restrict others from learning and building on them.</p>
<p>There may be informal systems that discourage copying—the comedy community, to take one example, <a href="http://www.slate.com/articles/arts/culturebox/features/2014/the_humor_code/joke_theft_can_a_comedian_sue_if_someone_steals_his_material.html">will call out people</a> who are deemed to be ripping off material—but for the most part these work without expensive litigation, threats of ruinous fines, and the creation of systems [-that can be abused to silence lawful non-infringing speech.</p>-]{+of surveillance and censorship.</p>+}
<h3>Contributing to a Creative Commons</h3>
<p>The free software movement [-may have popularized-]{+pioneered+} the [-idea-]{+practice+} of creating digital media that can legally and freely be shared and expanded, [-but the free culture movement has pushed the-]{+building a commons. The digital commons+} idea [-further-]{+is being pushed in more areas+} than ever [-before.-]{+before, including culture, education, government, hardware design, and research.+} There are some projects we're all familiar [-with—Wikipedia-]{+with -- Wikipedia+} is perhaps the most prominent, creating an expansive and continuously updated encyclopedia that is freely accessible under permissive terms to the entire world.</p>
<p>Focusing on this year's World IP Day theme of movies, there have been some impressive contributions the commons over the years. Nina Paley's feature animation <i><a href="http://www.sitasingstheblues.com/">Sita Sings The Blues</a></i>, which she released into the public domain, has spread widely, inspired more work, and earned her money. The <a href="http://www.techdirt.com/articles/20101002/20174711259/open-source-animated-movie-shows-what-can-be-done-today.shtml">short films from the Blender Foundation</a> have demonstrated cutting-edge computer graphics made with free software and, though they've sometimes been on <a href="http://www.techdirt.com/articles/20140406/07212626819/sony-youtube-take-down-sintel-blenders-open-source-creative-commons-crowdfunded-masterpiece.shtml">the receiving end of bogus copyright takedowns</a>, have been watched many millions of times.</p>
<h3>Kickstarting and Threshold Pledges</h3>
<p>Finally, crowdfunding platforms like Kickstarter and Indie-Go-Go have made a major splash in the last few years as another fundraising model that can complement, or even replace, [-traditional-] copyright exclusivity. These platforms build on theoretical framework laid out by scholars like John Kelsey and [-EFF board member-] Bruce Schneier in <a href="https://www.schneier.com/paper-street-performer.html">the influential "Street Performer Protocol" paper</a>, which set out to devise an alternative funding system for public [-works.</p>-]{+domain works. But most crowdfunded works are not in the commons, indicating an need for better <a href="https://gondwanaland.com/mlog/2013/08/10/street-patrons-missing-coordination-protocol/">coordination of street patrons</a>.</p>+}
<p>Looking at movies in particular: Kickstarter alone has <a href="https://www.kickstarter.com/blog/a-big-day-for-film">enabled hundreds of millions of dollars of pledges</a>, hundreds of theatrical releases, and seven Oscar-nominated films (including <i>Inocente</i>, winner of the Best Documentary Short category). [-Along with other-]{+Blender Foundation is currently+} crowdfunding [-sites, it has allowed the development of niche projects that might never have been possible under the traditional copyright system.&nbsp;</p>-]{+its first feature length film, <em><a href="http://gooseberry.blender.org/">Gooseberry</a></em>.</p>+}
<h3>***</h3>
[-<p>As the Constitution tells us,-]{+<p>The conceit of+} copyright and other "intellectual property" systems [-can, when-]{+is that they can be+} calibrated [-correctly,-]{+to+} promote the progress of science and the useful arts. [-We continue to work pushing for a balanced law that would better achieve that end.</p>-][-<p>But it's also-]{+But the reality of these systems is corruption and rent seeking, not calibration. The cost is not just less creativity and innovation, but less freedom and <a href="https://gondwanaland.com/mlog/2014/01/30/tech-wealth-ip/">equality</a>.</p>+}{+<p>It's+} clear from [-these-] real world examples that other systems can achieve [-that-]{+the+} goal [-as well. Promoting-]{+of promoting+} creativity, progress, and [-innovation is an incredibly valuable mission—it's good to know that it doesn't have-]{+innovation. We must continue+} to [-come through systems-]{+push for both practice and <a href="https://gondwanaland.com/mlog/2014/02/09/freedoms-commons/#regulators">policy+} that [-can-]{+favors these systems</a>, ultimately rendering "intellectual property" a baffling anachronism. In a good future, a policy-oriented celebration of creativity and innovaion would+} be [-abused to stifle valuable speech.</p>-]{+called World Intellectual Freedom Day.</p>+}

Notes theoretical and observed problems with monopoly incentive story underlying patents, mixed empirical results, regulatory cause of strong positive results in one field (pharma), layers of abuse surrounding core in implementation, the existence of many non-monopoly incentives for innovation, conflicts between these and patents … and yet fundamentally accepts the noble origin role of monopoly incentives in protecting apple pie and correlation with some inventions — nevermind causality or counterfactual. Compare text “certainly many inventions through history, such as the light bulb, the airplane, and the photocopier, were invented by small inventors and protected by patents” and its citation (footnote 7, The Myth of the Sole Inventor)!

Discusses commons (Open Innovation Communities) as evidence, and substantially better than typical writing doing so, as at least a concept of pro-commons reform is included: “One task for patent reform, then, is to consider adjustments to the patent system that better accommodate these alternate incentives for innovation. The goal of such adjustments is to better encourage these inventors incentivized by factors other than patents, and to ensure that patents do not stand in the way of those inventors.” As usual, commons regimes carved out of property defaults are mentioned (specifically GPL and DPL), but not as prototypes for default policy. Also, “it is important for these decisionmakers to reach out to inventing communities, even those that do not file for patents, and it is important for those communities to reach out to the Patent Office and other decisionmakers.” I think this also holds for “IP scholars” (which of course ought re-imagine themselves as commons scholars) and OIC participants/commoners — let’s talk about what concrete reforms would favor actually existing commons, and put those on the scholarly and policy agendas. A recent idea directly concerning patents that ought start down that long road, but many pertinent reforms may be indirect, favoring commons in other ways so as to change the knowledge economy which eventually determines what interests dominate.

Innovation is assumed the top goal of policy, tempered only by conflict among incentives to innovate, and need to rein in unscrupulous behavior. No mention of freedom and almost none of equality (Joseph Stiglitz is quoted: “The alternative of awarding prizes would be more efficient and more equitable”), let alone as goals which trump innovation.

It’s not a plan, rather an exploration of “five key areas in which the patent system is ripe for reform.” The word plan doesn’t even appear in the text. Well worth reading, but don’t expect to find an actionable plan with five parts.

Notes that patent trolls existed in the 1800s (individual farmers were bullied to pay royalties for farm implements covered by patents), which is good (too often current discourse assumes intellectual property worked just fine until recently, with conflict caused by changing technology rather than by power and rent seeking), but then: “Analogously, as discussed above, farm technology was widely used in the nineteenth century, and patents on farm technology were hotly contested. Patents on those farm tools were effectively abolished. But that fix to the patent system did not prevent the software patent problems faced today—it ultimately was a Band-Aid rather than a cure. The same would be true of eliminating software patents. The fundamental issue is that the technologies of tomorrow are unknown, so targeting patent reform to one specific field of technology means that the same problems will only arise again in a different technological sector.” Sure, only abolishing all patents is sufficient, but this analogy seriously undersells the benefit of abolishing software patents: agriculture then was in relative decline of importance in the face of industrialization. Now, software is ascendant, and any technology of tomorrow that matters will involve software.

Focuses on FRAND (fair, reasonable and non-discriminatory) licensing for standards. But RF (royalty free) licensing is required for any standard in which commons-based projects are first class participants (e.g., free/open source software and codec patents). No doubt unscrupulous behavior around FRAND and standards is a problem, but the solution is RF for standards.

Mark Lemley’s new paper IP in a World Without Scarcity provides good overviews of the case “that on the Internet, we increasingly get creativity in spite of, rather than because of, IP law” — the exclusivity incentive for creation story, if it were ever true, is drowning in non-exclusive creativity, and theories that distribution and revelation also require an exclusivity incentive also seem quaint given the Internet — and of 3D printing, general purpose robotics, and synthetic biology, which “share two essential characteristics with the Internet: they radically reduce the cost of production and distribution of things, and they separate the informational content of those things (the design) from their manufacture.” Thus, Lemley argues, economics and policy need increasingly to grapple with an end to scarcity, IP will be increasingly important, and we can draw lessons from the Internet about how this all will and should play out.

The paper is a quick read at 55 double-spaced pages. I recommend it to anyone interested in near future technology and policy. The paper’s final sentence:

Thinking about such questions has been the province of science fiction authors, but understanding what a post-scarcity economy will look like is the great task of economics for the next century.

Lemley cites two SF books very familiar to many readers: Down and Out in the Magic Kingdom by Cory Doctorow (my positive review) and The Diamond Age: Or, A Young Lady’s Illustrated Primer by Neal Stephenson, which just a few days ago I exploited in a private communication: “…the primer is an interactive learning notebook which adapts as the owner learns, informing a generation of geeks’ vision of education and development. Such tools are increasingly feasible. Will all humans have full access to, and ability to participate in the development of such tools? Only if they are developed in the commons, which will only happen with intentional action.” That’s probably a good segue into my disagreements with and additional idiosyncratic observations about IP in a World Without Scarcity.

…

By IP, Lemley means intellectual property: mostly copyright, patent, trademark. That has been and will be increasingly a terrible frame for thinking about policy. It gives away the farmfuture to owners of the past, who, as Lemley notes “will fight the death of scarcity” as they have fought the Internet — with more criminalization, more lawsuits, more attempts to fundamentally alter technologies in order to protect their rents. This seems rather suboptimal given that we know the theory upon which IP rests is largely bunk. The alternative, assuming we still only wish to maximize innovation, is to make innovation policy the frame. This makes turning the enclosure dial up or down a sideshow, and pulls in non-enclosure incentives and a host of more indirect and probably much more important determinants of innovation, e.g., education and governance.

The paper provides a couple reasons for focusing on the enclosure version of IP (Lemley doesn’t need any reason; he’s an IP scholar, and though I wish such people would reconceptualize themselves as commons scholars, I have no expectation; in any case the “reasons” are my reading). First, the framing isn’t as harmful as I made it out to be, because IP owners’ fight against the Internet “didn’t work. Copyright infringement remains rampant” and against other democratizing technologies, “IP owners will (probably) lose that fight.” But winning isn’t binary, nor is the continued existence of rampant copyright infringement a good indicator.

Given that network effects are highly relevant for many kinds of knowledge products — a tool or experience is much more valuable if other people can be expected to know it — a significant level of piracy can be profit-maximizing for an IP rent collector. Better indicators might be the collapse of profits from IP rents (the movie industry continues to grow, and while the recorded music industry has declined from its peak, this is nothing like an icehouse collapse, and many other IP rent sectors continue to grow) and the displacement of IP rent collectors as the marketers the dominant knowledge products of the age by other entities better adapted to a world in which fighting against the Internet doesn’t work (the mass and high-status markets are dominated by IP rent collectors in nearly all fields, exceptions being encyclopedias and certain kinds of infrastructure software). These might be minor, highly debatable (maybe the music industry will soon recommence a full collapse, be joined by movies, both displaced by crowdfunding and crowdmarketing; I doubt it given the properties controlled by IP rent collectors and other entities’ unchanged desperation to cut unfavorable deals with them) quibbles, if the IP owners’ “losing” fight against the Internet hadn’t significantly damaged the Internet.

But the Internet has been damaged by the IP owners’ fight. Absent an academic characterization of how significant that damage is (which I would love to read), here are some of the ways:

Copyright-based censorship provides cover for all kinds of political censorship, result: political censors have additional justification, doing what Hollywood does;

All of above centralization and monopoly makes dominant entities a target for compromise, result: mass surveillance and non-state cybercrime abetted;

Our imagination and expectation of what the Internet makes possible is diminished, result: DRM TV and radio and silos organized for spying are seen as the norm, information organized for public benefit such as Wikipedia, unusual; this flipping of democratic hopes for the Internet, a partial AOL scenario, is collateral damage from the IP owners’ war on the Internet.

Similar damage will be done to the potential of new technologies with Internet-like characteristics (in addition to those discussed in the paper, others add the Internet of Things, distributed energy generation, and educational technologies, e.g., Jeremy Rifkin in his new book The Zero Marginal Cost Society, which I plan to review soon) by incumbents. This makes Lemley’s policy recommendations seem overly tentative and timid:

[It] is hard to translate this skepticism into immediate policy prescriptions, both because the whole point is that the need for IP will be sensitive to individual industry characteristics and because the technologies I am discussing are still in their infancy […] “we should resist the tendency to expand IP reflexively to meet every new technological challenge” […] “IP owners should not be allowed to reach beyond suing infringers and seek to shut down or modify the technology itself” […] “IP law needs to make it easier for creators to opt out of the IP regime.”

IP rent collectors will not hold off protecting their interests pending idealized analysis of more fully developed technologies. The damage they do will be built into another generation of technology and society, with IP scholars and activists left to worry that policy is contrary to evidence and to take rearguard actions to protect the level of openness they’ve become accustomed to, but fail to imagine what would have been possible had the stranglehold of IP rent collectors been broken. Just like the Internet today. I’ll come back to less timid and more proactive policy response in a bit.

Second reason for focus on the enclosure version of IP, the usual — big budget movies (and regulated pharma, mentioned earlier in the paper):

There is still a role for IP on the Internet. There are some works that are so costly to create even in the digital world that they are unlikely to be made without effective IP protection. Big-budget movies and video games cost hundreds of millions of dollars to make. No amount of creative fire will drive someone who doesn’t have hundreds of millions of dollars to make Peter Jackson’s Lord of the Rings trilogy. They need corporate backing, and the corporate backers need a revenue stream. But in the Internet era those works are increasingly the the exception, not the rule.

My usual response — we should allow enclosure of our freedom, equality, and the democratic potential of the Internet in order to ensure an ongoing supply of spectacle provided in the same way it has for decades? Spectacle over freedom, really? Of course the “reason” is far more pessimal than that, as the cost of producing and distributing spectacle is going down fast, as is the cost of coordinating distributed patrons who want product, not rent collection. Further, because culture is also so dominated by network effects, we’ll all love whatever spectacle is produced, whether it took 15 or 500 months of work per minute of spectacle. It’s not as insane to contemplate threatening liberal values in order to get new drugs as it is to get new movies — but then considering non-enclosure mechanisms for developing and evaluating new drugs, and the issues of access and equality are more pressing…

More Lemley:

IP is essentially a form of government regulation. The government restricts entry into the market, or alternatively controls the price at which that entry can occur, in order to serve valuable social ends. But regulation is not a moral entitlement or something that we must take for granted. In the past, government regulated all sorts of industries – railroads, trucking, electric power, gas, telephones – because it could not see given the economics of those industries how a free market could produce socially optimal results. But in a surprising number of cases, when we deregulated those industries we found that the market could indeed find a way to supply goods we thought would be provided only with government rule-making. IP is no different in this respect than any other form of regulation. Regulation as a whole shouldn’t disappear, but regulation of particular industries often turns out to be a reflexive response to a failure of imagination, something we do because we have done it for so long that we cannot imagine how a market in that industry could function without it.

This is certainly superior to the rights/owner/property characterization inherent in IP — it recasts “owners” as beneficiaries of regulation — and I think implicitly makes the case for switching one’s frame from intellectual property to innovation policy. That leads us to what the goal of “innovation policy” regulation ought be, and sufficiently proactive policies to achieve that. Should the goal be to maximize “innovation”, “creativity”, the “progress of science and useful arts”, or the like? It would be a huge improvement to sideline enclosure as the primary mechanism and retain the same top objective. But even that improvement would be short sighted, given how systematically innovation policy regulation has and will increasingly shape society. A success of imagination would be to make freedom and equality the top objectives of and constraints on innovation policy, and only then maximize innovation. The innovations generated by a free and equal society are the ones I want. Others are to be gawked at with dismay and guilt.

On proactive policies required, in brief they are pro-commons policies, and I return to Benkler:

Regulators concerned with fostering innovation may better direct their efforts toward providing the institutional tools that would help thousands of people to collaborate without appropriating their joint product, making the information they produce freely available rather than spending their efforts to increase the scope and sophistication of the mechanisms for private appropriation of this public good as they now do.

That we cannot fully understand a phenomenon does not mean that it does not exist. That a seemingly growing phenomenon refuses to fit our longstanding perceptions of how people behave and how economic growth occurs counsels closer attention, not studied indifference and ignorance. Commons-based peer production presents a fascinating phenomenon that could allow us to tap substantially underutilized reserves of human creative effort. It is of central importance that we not squelch peer production, but that we create the institutional conditions needed for it to flourish.

I realize that I haven’t provided any specific pro-commons policy recommendations in this post, nevermind any that are especially pertinent in a world with less scarcity. I’m deeply skeptical that lower, different costs substantially change innovation policy or knowledge commons arguments — the same ones have recurred since at least the 1800s — and am extremely doubtful that the usual assumption that digital networks fundamentally change desirable policy (or here, that further technologies with digital network like characterizations further change desirable policy) is true or non-harmful — these assumptions give away (legitimize) the past to those who now use it to control the future. Some short term and narrow but valuable pro-commons policy suggestions arising from the Wikimedia movement; the free software movement offers other suggestions, if we take some of its practices as prototypes for regulation enforced by mechanisms other than copyright holder whim, more powerful and better aligned with its claims of software freedom as a human right.

…

A few final quotes from Lemley’s IP in a World Without Scarcity, first two from footnotes:

The challenge posed to copyright by collective production sites like Wikipedia is not just one of the need for incentives. Collective production challenges the whole concept of authorship.

Indeed, and as I keep repeating effective product competition from the commons (such as Wikipedia) re-imagines the range of desirable policy and reduces the resources available to enclosure industries to lobby for protectionism — in sum shifting what is politically possible.

It is possible that creators create in hopes of being one of the few superstars whose work is actually rewarded by copyright law. It is well known that people systematically overvalue the prospect of a large but unlikely reward; that’s why they buy lottery tickets. Some scholars have suggested that the same effect may be at work in IP. But if so, the incentive on which we rely is, as Kretschmer puts it, “based on a systematic cognitive mistake.” In effect, we are coaxing works out of these creators by lying to them about their chances of getting paid.

This has long struck me as being the case. The question is then (in addition to considerations above), do we really want a culture dominated by fools and sell-outs?

A world without scarcity requires a major rethinking of economics, much as the decline of the agrarian economy did in the 19th century. How will our economy function in a world in which most of the things we produce are cheap or free? We have lived with scarcity for so long that it is hard even to begin to think about the transition to a post-scarcity economy. IP has allowed us to cling to scarcity as an organizing principle in a world that no longer demands it. But it will no more prevent the transition than agricultural price supports kept us all farmers. We need a post-scarcity economics, one that accepts rather than resists the new opportunities technology will offer us. Developing that economics is the great task of the 21st century.

But we should aim for much better than the travesty of developed country agricultural policy (even before considering its baneful intersection with IP) as the legacy of this transition! But the consequences of continued capture of innovation policy have the potential to be far worse. Even if few are employed in information industries, there is no transition on the way to displace arranging information as the dominant mode of the economy (however measured; previous modes being hunting/gathering, agriculture, and industry); if the mode is largely controlled by rent collectors, the result could be a very unfree and unequal society — perhaps on the order of pre-industrial agricultural societies.

I really enjoyed Copyright and Inequality, a new paper by Lea Shaver forthcoming in the Washington University Law Review — enough to attempt a summary on first read, and to read a second time, aloud, in hope that some people who would never read a 52 page paper might still hear its message.

The paper is highly readable, a large part of it (“A Case Study in Book Hunger”, numbered pages 9-22, about books, languages, and the socio-economics of South Africa) of general interest, barely mentioning copyright at all — though if you start by reading that section, hopefully you’ll then read the rest of the paper to find out how copyright is implicated. May the remainder of this post be a complement.

Inequality Promotion

To put it crudely, Copyright and Inequality mostly concerns copyright’s role in keeping the poor poor, rather than its role in concentratingwealth. The latter seems even less studied than the former, but the former seems more important, unless you consider rule by plutocracy the most urgent issue in the world.

In the category of keeping the poor poor, the magnitude of copyright’s negative impact on neglected language (cf. neglected disease) populations was new to me — the requirement of permission to translate contributes to almost no books being available in these languages, for pleasure, or for education, the latter creating a bottleneck for further life opportunities (n.b. “everyone should learn English” is a multi-generation strategy only successfully carried out by wealthy countries so far).

The cost issue is obvious, but can hardly be repeated enough. Shaver provides the example of books (when available at all, almost always in English) costing 2x as much in South Africa as in the US or UK, while income is far lower, especially for the poor (about half of the population lives on less than US$50 a month).

Many countries are far poorer than South Africa, and large populations dependent on neglected languages are common. Many wealthy countries, the U.S. in particular, have large populations of poor and neglected language speakers. Copyright is helping keep the poor poor everywhere. (Expensive textbooks are appropriately a priority target in the U.S., but every good that carries a copyright monopoly tax contributes in some combination to material poverty and cultural exclusion.)

Shaver makes a very strong case for including distributive justice in copyright discourse, along the way summarizing well known problems with the dominant romantic authorship + incentive narrative which has sidelined equality. She doesn’t push for any single solution, but the most interesting discussion is of the possibility of a carve out for translation to neglected languages, along the lines of such for braille and audio versions for use by blind users. Shaver says that copyright term extension should be opposed (additionally) for distributive justice concerns, but term reduction is “politically impossible” due to treaty obligation. (In what other fields is scholarly discourse on substantially alternative and obviously superior arrangements — the current regime based on “more fallacy than fact” — so readily discarded?)

Commons

Copyright and Inequality mentions free/open/commons production or distribution briefly in a few places:

Another scholar mentioned commons-based peer production in the context of patents.

The “more radical” (than providing access at public libraries) solution of “allocating public textbook funds to the production of Open Educational Resources.” (Actually a rapidly growing practice.)

“Open business models” meaning very broadly cultural production not dependent on restricting copying.

“Limited commons”, e.g., copyright might be relaxed for a neglected language, but translations of new works in that language to non-neglected languages would be fully restricted.

I’m happy that these are included at all, but commons advocates need to make full versions central. A carve out for translation to neglected languages would be better than none, but if it is achieved, will take many years of negotiation, and be riddled with requirements that will limit effectiveness (as Shaver notes is the case with carve outs for disability), and obviously would leave all non-linguistic copyright inequality mechanisms, and the resources of interest groups that support enclosure, fully intact. Commons-based funding mandates and peer production can happen much faster, and are anything but politically impossible, and can make a huge impact, far beyond a “patch”.

This potential huge impact might hold especially for neglected languages, which essentially are not being served at all by proprietary production. For everyone, as I’ve said many times, product competition from the commons both reduces the resources available to enclosure industries to lobby for protectionism and re-imagines the range of desirable policy, in sum shifting what is politically possible.

Buttressed with recognition of copyright inequality, in particular its negative impact on neglected language populations, what might various commons advocates, projects, and movements do? Some off-the-cuff notes:

I’ve long admired Wikimedia’s commitment to host its projects (Wikipedia and friends) for any language community capable of maintaining a project, even a very small one, and its enunciation of the importance of this commitment and of Wikimedia’s freedom (as a non-profit) to pursue such a commitment. The result so far includes Wikipedia in 287 languages and much more, with even more in incubation, formal and informal movement communities around the world, a program to make Wikipedia access free of mobile data charges in the developing world, and probably much more I’m not aware of. Should the findings of Copyright and Inequality lead the various parts of the Wikimedia movement to multiply their efforts to support the growth of and access to free knowledge in neglected languages and increase estimates of the Wikimedia movement’s economic values accordingly? The paper’s findings are probably already well known by the staunchest language advocates around Wikimedia, but perhaps they should be taken even more seriously than they already are. I am ignorant of the human side of Wikimedia outreach to neglected language communities, but surely there is now a substantial body of experience which could be leveraged in making further investments and partnerships. On the technical side, perhaps the migration of lots of knowledge into the truly multilingual Wikidata project could enable more projects in more languages to be truly useful, even for very small language communities?

The importance of first language availability of texts, especially educational materials, implies that software user interface availability in the user’s first language is probably pretty important too. What would it take to increase popular free/open source software application language support from dozens (Firefox claims over 80, LibreOffice over 30) to hundreds, even thousands of languages, thereby including most neglected languages? More collaboration across program translation efforts? More centralization? Collaboration with governments, educational systems, funders? A higher bar for user interface changes requiring translation updates? Fewer programs?

Fund the creation new free knowledge (inclusive of entertainment!) works in neglected languages, e.g., with small grants and prizes, and introduction of collaborative production, e.g., book sprints?

Market, sell, distribute, push for adoption of free knowledge works among neglected language populations — this is what publishers do (given a wealthy enough population anyway), and what must be done for the commons. Making works available online, with no promotion, only solves problems for an elite, and doesn’t offer proprietary publishers any competition, where they choose to compete.

Could recognition of the value of neglected languages provide an impetus for a new and large effort toward free software machine translation? Little progress has been made thus far, perhaps in part because some proprietary services such as Google Translate are gratis, and work for most non-neglected languages. Could redoubled effort to support neglected languages in Wikimedia projects (Wikisource translations might be especially relevant) and free/open source software projects help provide needed parallel corpora?

Awareness of the plight of neglected language populations could buttress arguments for open funding mandates, particularly if it could be demonstrated that some resulting materials were actually translated and used by said populations — neglected language translation and marketing might even be included in some such mandates, or funders and projects working with neglected language populations could specifically target translation and distribution of the “best” of the output of open funding mandates.

Awareness of neglected languages could buttress arguments for voluntary release of works under free/open licenses or into the public domain. (A handful of readers might note that translation-only licenses have been proposed, and a “Developing Nations” license briefly offered. The latter got almost no use before it was retired, perhaps in part because it seemed both confusing and paternalistic — and I doubt these very limited commons offer much, including in public license form. I can’t stress enough that sales/marketing/distribution/adoption are very tough and very necessary, and commons projects have largely failed at them to date. Given this, it is insane to cut off entire segments of potential collaborators, e.g., free knowledge projects and diaspora communities.)

Increasing commons movements’ self-awareness of their ability to help neglected language populations could buttress these movements’ self-awareness of their own political potency, leading them to act unashamedly as an interest group and to boldly stake a claim for the commons as the central paradigm for information/innovation policy, thereby further increasing their political potency, and ability to help neglected language populations. (Recursion intentional!)

Spectacle

Further excerpts from Copyright and Inequality:

Overall, copyright law works quite well for copyright scholars at leading universities.

Funniest sentence in the paper, presumably unintentional. (One small bit of progress would be for “copyright scholars” to re-imagine themselves as “commons scholars”; cf. copyright experts→commons experts.)

Its protections give us control over our own writings, which we can choose to invoke or to waive, as we believe best suits our own interests. Its incentives help to stimulate the production of an ever-greater variety of informative and entertaining works for our professional and personal development. Its limitations on access and use of copyrighted works only rarely pose significant problems for us. From this perspective, it is easy to miss the more profound problems posed for the 99% of the world that does not enjoy the same privileged position of access.

From this privileged perspective, creative production resembles a constantly expanding buffet of choice laid before us, among which we may select the most appealing options until we are full. Perhaps some of these offerings are being produced in languages we do not speak. No matter, more than enough choices remain. In our affluence of resources and opportunities, we might even choose to acquire fluency in a second language to further expand our choices. Copyright protection promises to raise the quality, the diversity, at the very least the sheer number of offerings placed upon the table. How could this be a bad thing? But can your peripheral vision stretch farther still? If so, you might see, standing back behind you, a hungry crowd. They are the poor. They are a majority of the world. They too admire the buffet. But they realize it is not laid for them. For some of us, the proliferation of new works is a bounty, opening up new worlds of consumer choice, new horizons of creativity to explore. For most of the world’s population, however, the expanding universe of new cultural works is yet another site of social privilege from which they are effectively excluded.

Well and powerfully said regarding the unseen and neglected, but I submit further that our forward vision is profoundly myopic. Relative to the (perhaps two billion?) people who are both poor and only read a neglected language, wealthy people with English fluency are incredibly privileged, and have ready access to an astounding and ever-growing surfeit of culturally relevant educational and entertainment materials. Those employed by wealthy universities have yet more ready access. Just before the humorous sentence:

Located in major research universities, we also enjoy supremely convenient access to the best-funded libraries in the world. As a group, we do not fail to complain when we notice that copyright law impedes our own ability to access, create, and distribute cultural works. Fortunately, our legal expertise and professional experience positions us well to both recognize the legal roots of our problems, and to suggest solutions to our legislatures and courts.

But however well positioned relative to neglected language populations or the general public of wealthy countries, these complaints and suggestions always face a tremendous uphill battle, at best. The enclosure industries are much better positioned than their scholars.

We love whatever culture we grow up in, but I doubt the one driven by the maximization of rents available from cultural products (cf.), at the expense of freedom and equality, is anywhere near the best of possible worlds, even for those with access to those products. I think an analogy to the internet is appropriate: had a small number of closed electronic services continued to dominate, and a decentralized network never developed, we would now think of the AOL, CompuServe, and Prodigy of 2014 as amazing — and they would be! The much better world of the internet would be beyond the imagination of most. Culturally, that AOLternative universe is the one we live in. But we can catch some glimpses of the internet universe, e.g., in Wikipedia, in PLOS, in memories of Napster.

Perhaps appropriately, only acting in the interests of poor and neglected language populations, against copyright inequality, will we be able to leave the AOL culture scenario and into the internet culture universe.

Closing quote from Copyright and Inequality:

An often-quoted statement by John Maynard Keynes posits that “The political problem of mankind is to combine three things: economic efficiency, social justice, and individual liberty.” The perspectives of economic efficiency and individual liberty have profoundly informed our discussion of copyright law. Yet the perspective of social justice has been comparatively absent. Reckoning with the ways in which social inequality impacts the market for copyrighted work begins to supply this missing perspective. In the end, the inequality insight also leads us back to economic efficiency and individual liberty. For a system of creative production and exchange that excludes most of the world from participation is also not economically efficient. Nor does it effectively promote individual liberty for all. To promote all three of these values, copyright policy and scholarship must account for the realities of social inequality.

I recently wrote about Benkler’s 2002 claim that “commons-based peer production” or the “networked information economy” couldenhance the liberal values of democracy, equality, freedom, and innovation and the corollary that “intellectual property” is a barrier to peer production, thus to realizing these gains. More riffing on Benkler’s papers forthcoming, but that post also serves to kick off a series I’ve long meant to do — looking at IP (take your pick: intellectual property, intellectual/industrial protectionism, inequality promotion, information/innovation policy) and commons from the perspective of various general characterizations of, take your pick: ethics, morality, politics, values. These posts will be rather naive, reflecting in some proportions the generally ignorant nature of what passes as discourse on IP and my ignorance of wide swaths of discourse. I appreciate efforts from others to correct both.

You’ve probably seen a plot of cultures on the dimensions of traditional/secular-rational values and survival/self-expression values, from World Values Survey data, but here it is again:

Traditional values emphasize the importance of religion, parent-child ties, deference to authority and traditional family values. People who embrace these values also reject divorce, abortion, euthanasia and suicide. These societies have high levels of national pride and a nationalistic outlook.

Secular-rational values have the opposite preferences to the traditional values. These societies place less emphasis on religion, traditional family values and authority. Divorce, abortion, euthanasia and suicide are seen as relatively acceptable.

Survival values place emphasis on economic and physical security. It is linked with a relatively ethnocentric outlook and low levels of trust and tolerance.

Self-expression values give high priority to environmental protection, growing tolerance of foreigners, gays and lesbians and gender equality, and rising demands for participation in decision-making in economic and political life.

Traditional family values: highly capitalized intermediaries are often willing accomplices in promoting, and suppressing other values.

Nationalistic: those foreign pirates!

Economic security: tropes of caring about starving artists and their descendants, and the centrality of the assumption that knowledge would not be created without property and of showing off how much “economic activity” industry generates.

Low levels of trust and tolerance: previous assumption, and want to control unauthorized adaptations and uses.

I didn’t include religion above because it plays little role in contemporary IP discourse, but historically I’d place it solidly with Property, thus furthering its alignment with traditional values — religion has been a and often the primary enforcer of control and exclusivity over knowledge from the dawn of civilization.

Commons advocates look back fondly on gift exchange in traditional cultures. I don’t think this will be a fruitful attack, as gift economy does not align with traditional or survival values as used in the World Values Survey. But you could construct a tenuous multi-step argument.

Jurisdictions with stronger enforcement of intellectual property tend to have populations with secular-rational and self-expression values, relative to those with weaker enforcement.

Property, through its support for centralized control and highly capitalized intermediaries, is exactly what destroys traditional and survival values, even if relying on same for legitimacy, and needing to strike occasional bargains with traditional values advocates.

Perhaps these amount to claim that commons expressively aligns with secular-rational and self-expression values, but property instrumentally aligns with same. This largely brings us back to theory and facts: does property or commons maximize innovation? But, what about freedom and equality as desiderata of innovation policy? I conclude for now that the current IP regime aligns with traditional and survival values and knowledge commons with secular-rational and self-expression values.

As might be expected from decade plus old internet research, some of the examples in the papers and book are a bit stale, but sadly their fundamental challenge remains largely unacknowledged, and only taken as a byproduct. I would love to be convinced otherwise. Is the challenge (or my extrapolation) wrong, unimportant, or being met satisfactorily?

Excerpts from Freedom in the Commons (emphasis added by me in all quotes that follow):

[Commons-based peer production] opens a range of new opportunities for pursuing core political values of liberal societies—democracy, individual freedom, and social justice. These values provide three vectors of political morality along which the shape and dimensions of any liberal society can be plotted. Because, however, they are often contradictory rather than complementary, the pursuit of each of these values places certain limits on how we conceive of and pursue the others, leading different liberal societies to respect them in different patterns.

…

An underlying efficient limit on how we can pursue any mix of arrangements to implement our commitments to democracy, autonomy, and equality, however, has been the pursuit of productivity and growth.

…

[Commons-based peer production] can move the boundaries of liberty along all three vectors of liberal political morality.

…

There is no benevolent historical force, however, that will inexorably lead the technological-economic moment to develop towards an open, diverse, liberal equilibrium. If the transformation occurs, it will lead to substantial redistribution of power and money from the twentieth-century, industrial producers of information, culture, and communications—like Hollywood, the recording industry, and the telecommunications giants—to a widely diffuse population around the globe. None of the industrial giants of yore are going to take this redistribution lying down. Technology will not overcome their resistance through some insurmountable progressive impulse. The reorganization of production, and the advances it can bring in democracy, autonomy, and social justice will emerge, if it emerges, only as a result of social and political action. To make it possible, it is crucial that we develop an understanding of what is at stake and what are the possible avenues for social and political action. But I have no illusions, and offer no reassurances, that any of this will in fact come to pass. I can only say that without an effort to focus our attention on what matters, the smoke and mirrors of flashy toys and more convenient shopping will be as enlightening as Aldous Huxley’s soma and feelies, and as socially constructive as his orgy porgy.

Let us think, then, of our being thrust into this moment as a challenge. We are in the midst of a technological, economic, and organizational transformation that allows us to renegotiate the terms of freedom, justice, and productivity in the information society. How we shall live in this new environment will largely depend on policy choices that we will make over the next decade or two. To be able to understand these choices, to be able to make them well, we must understand that they are part of a social and political choice—a choice about how to be free, equal, and productive human beings under anew set of technological and economic conditions. As economic policy, letting yesterday’s winners dictate the terms of economic competition tomorrow is disastrous. As social policy, missing an opportunity to enrich democracy, freedom, and equality in our society, while maintaining or even enhancing our productivity, is unforgivable.

…

Although the claim that the Internet leads to some form or another of “decentralization” is not new, the fundamental role played in this transformation by the emergence of non-market, nonproprietary production and distribution is often over-looked, if not willfully ignored.

…

First, if the networked information economy is permitted to emerge from the institutional battle, it will enable an outward shift of the limits that productivity places on the political imagination. Second, a society committed to any positive combination of the three values needs to adopt robust policies to facilitate these modes of production,because facilitating these modes of production does not represent a choice between productivity and liberal values, but rather an opportunity actually to relax the efficient limit on the plausible set of political arrangements available given the constraints of productivity.

We are at a moment in our history at which the terms of freedom and justice are up for grabs. We have an opportunity to improve the way we govern ourselves—both as members of communities and as autonomous individuals. We have an opportunity to be more just at the very core of our economic system. The practical steps we must take to reshape the boundaries of the possible in political morality and to improve the pattern of liberal society will likely improve productivity and growth through greater innovation and creativity. Instead of seizing these opportunities, however, we are sleepwalking.

This suggests that peer production will thrive where projects have three characteristics. First, they must be modular. That is, they must be divisible into components, or modules, each of which can be produced of the production of the others. This enables production to be incremental and asynchronous, pooling the efforts of different people, with different capabilities, who are available at different times. Second, the granularity of the modules is important and refers to the sizes of the project’s modules. For a peer production process to pool successfully a relatively large number of contributors, the modules should be predominately fine-grained, or small in size. This allows the project to capture contributions from large numbers of contributors whose motivation levels will not sustain anything more than small efforts toward the project. Novels, for example, at least those that look like our current conception of a novel, are likely to prove resistant to peer production. In addition, a project will likely be more efficient if it can accommodate variously sized contributions. Heterogeneous granularity will allow people with different levels of motivation to collaborate by making smaller- or larger-grained contributions, consistent with their levels of motivation. Third, and finally, a successful peer production enterprise must have low-cost integration, which includes both quality control over the modules and a mechanism for integrating the contributions into the finished product.

…

Regulators concerned with fostering innovation may better direct their efforts toward providing the institutional tools that would help thousands of people to collaborate without appropriating their joint product, making the information they produce freely available rather than spending their efforts to increase the scope and sophistication of the mechanisms for private appropriation of this public good as they now do.

That we cannot fully understand a phenomenon does not mean that it does not exist. That a seemingly growing phenomenon refuses to fit our longstanding perceptions of how people behave and how economic growth occurs counsels closer attention, not studied indifference and ignorance. Commons-based peer production presents a fascinating phenomenon that could allow us to tap substantially underutilized reserves of human creative effort. It is of central importance that we not squelch peer production, but that we create the institutional conditions needed for it to flourish.

There’s been some progress on institutional tools (i.e., policy arrangements writ large, the result of “political action” above) in the 11 or so years since (e.g., Open Access mandates), but not nearly enough to outweigh global ratcheting of intellectual freedom infringing regimes, despite the occasional success of rearguard actions against such ratcheting. Neither these rearguard actions, nor mainstream (nor reformist) discussion of “reform” put commons at the center of their concerns. The best we can expect from this sleepwalking is to muddle through, with policy protecting and promoting commons where such is coincidentally aligned with some industrial interest (often simplified to “Google” in the past several years, but that won’t last forever).

My extrapolation (again, tell me if facile or wrong): shifting production arrangements so as to favor commons-based peer production is as important as, complementary to, and almost necessary for positive policy change. Commons-based product competition simultaneously changes the facts on the ground, the range of policies imaginable, and potentially create a commons “industrial” interest group which is recognizably important to regulators and makes commons-based peer production favoring policy central to its demands — the likely Wikimedia response to the European Commission copyright consultation is a hopeful example.

There has been lots of progress on improving commons-based peer production (e.g., some trends), but also not nearly enough to keep up with proprietary innovation, particularly lacking and missing huge opportunities where proprietary incumbents real advantages sit — not production per se, but funding and distribution/marketing/cultural relevance making. Improving commons-based peer production, shifting the commanding heights (i.e., Hollywood premium video and massively expensive and captured pharma regulatory apparatus) to forms more amenable to commons-based peer production, and expanding the scope of commons-based peer production to include funding and relevance making are among the most potent political projects of our time.

Without intervention, technology will probably lead to an untenable disparity—so we probably need some amount of intervention. Technology also increases the total wealth in a way that mostly benefits everyone, but at some point the disparity just feels so unfair it doesn’t matter.
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This widening wealth divide is happening at all levels—people, companies, and countries. And either it will keep going, or innovation will stop.

The very first intervention ought be in our innovation policy, which presently is tuned to maximize concentration of wealth and minimize the access of everyone to the benefits of innovation — because our innovation policy is a property/rent seeking regime. A fewdatapoints.

Such an intervention won’t stop innovation, but might change it, and we should want that. Beautiful progress is that which is produced by a freedom and equality respecting regime. We ought be suspicious and ashamed of progress which depends on infringing freedom and promoting inequality. If mass spectacle ends when the regime falls, all the better. We’ll love whatever culture we have and create, will be amazed by its innovation, in part encouraged through non-enclosing innovation policy.

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If innovation-driven inequality is a big problem, we ought be more highly valuing (including figuring out how to characterize that value) and promoting existing systems which depend on and promote freedom and equality, i.e., commons-based ones such as free/open source software and the Wikimedia movement (and recursively working on equality and diversity within those systems).

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Innovation could tend to increase inequality independent of wealth concentrating, property/rent-seeking based innovation policies and other political factors. If this is the case (or honestly even if it is not), I’m always disappointed that progressivity of tax systems isn’t central to the debate — and I don’t mean marginal income tax rates. Basically property > income > sales. Further, property property can’t be moved and taxing it doesn’t require extensive privacy invasions. In theory I’d expect the strongest states and most free and equal societies of the future to strongly prefer real property taxation over other systems. But perhaps path dependencies and other factors will swamp this (and innovation policy as well).

I’m fairly convinced on this theme: regimes infringing on intellectual freedom are individual and collective mind-rot, and “merely” accentuate the tendencies toward inequality and control of whatever systems they are embedded in. Mitigating, militating against, outcompeting, and abolishing such regimes are trivially for the good, low risk, and non-revolutionary. But sure, I have doubts:

Though I see their accentuation of inequality and control as increasingly important, and high leverage for determining future outcomes, copyright and patent could instead be froth. The cause of intellectual freedom might be better helped by fighting for traditional free speech issues, for tolerance, against mass incarceration, against the drug war, against war, against corruption, for whatever one’s favored economic system is…

The voluntarily constructed commons that I emphasize (e.g., free software, open access) could be a trap: everything seems to grow fast as population (and faster, internet population) grows, but this could cloud these commons being systematically outcompeted. Rather than being undersold, product competition from the commons will never outgrow their dwarfish forms, will never shift nor take the commanding heights (e.g., premium video, pharma) and hence are a burden to both policy and beating-of-the-bounds competition. Plus, copyright and the like are mind-rot: generations of commons activists minds have been rotted and co-opted by learning to work within protectionist regimes rather than fighting and ignoring them.

An intellectual freedom infringing regime which produced faster technical innovation than an intellectual freedom respecting regime could render the latter irrelevant, like industrial societies rendered agricultural societies irrelevant, and agricultural societies rendered hunter-gatherer societies irrelevant, whatever the effects of those transitions on freedom and other values were. I don’t believe the current regime is anywhere close to being such a thing, nor are the usual “IP maximalism” reforms taking it in that direction. But it is possible that innovation policy is all that matters. Neither freedom and equality nor the rents of incumbents matter, except as obstacles and diversions from discovering and implementing innovation policy optimized to produce the most technical innovation.

I’m not, but can easily imagine being won over by these doubts. Each merits engagement, which could result in much stronger arguments for intellectual freedom, especially knowledge commons.

This is an old theme: examples from 2004, 2005, 2006, 2007, 2008, 2011, and 2012. 2009 and 2010 are absent, but the reason for my light blogging here bears some relation to the theme: those are the years I was, in theory, most intensely trying to “walk my talk” at Creative Commons (and mostly failed, side-tracked by trying to get the organization to follow much more basic best practices, and by vast amountsofsilliness).

Doubts about the cheering part are implied in the previous section. I’ll focus on the criticism here, but cheering is the larger component, and real: of entities criticized in the above links, in 2013 I donated money to at least EFF, FSF, and Internet Archive, and uncritically promoted all of them at various points. The criticism part amounts to:

Gains could be had from better coordination among entities and across domains, ranging from collaboration toward a short term goal (e.g., free format adoption) to diffuse mutual reinforcement that comes from shared knowledge, appreciation, and adoption of free/open/commons tools and materials across domains (e.g., open education people use open source software as inherent part of their practice of openness, and vice versa).

The commons are politically potent, in at least two ways: minimally, as existence proof for creativity and innovation in an intellectual freedom respecting regime (carved out); and vastly underappreciated, as destroyer of rents dependent on the intellectual freedom infringing regime, and of resources available for defending those rents and the regime. Commons are not merely to be protected from further bad policy, but are actors in creating a good policy environment, and should be promoted at every turn.

To be clear, my criticism is not usually a call for more “radical” or “extreme” steps or messages, rather more fulsome and coordinated ones. Admittedly, sometimes it may be hard to tell the difference — and this leads to my doubts:

Given that coordination is hard, gaining knowledge is expensive, and optimization path dependent, the entities and movements I criticize may not have room to improve, at least not in the direction I want them to improve in. The cost of making “more fulsome and coordinated” true might be greater than mutual reinforcement and other gains.

See the second doubt in the previous section — competition from the commons might be futile. Rather than promoting them at every turn, they should sometimes be held up as victims of bad policy, to be protected, and sometimes hidden from policy discourse.

The first doubt is surely merited, at least for many entities on many issues. For any criticism I have in this space, it makes sense to give the criticized the benefit of the doubt; they know their constraints pretty well, while I’m just making abstract speculations. Still, I think it’s worthwhile to call for more fulsome and coordinated strategy in the interstices of these movements, e.g., conversation and even this blog, in the hope of long-term learning, played out over years in existing entities and movements, and new ones. I will try henceforth to do so more often in a “big picture” way, or through example, and less often through criticism of specific choices made by specific entities — in retrospect the stream of the latter on this blog over the last year has been tedious.

The system is grossly unjust and ought be abolished, about that I have no doubt. Existing institutions and arrangements must adapt. But, two doubts about my approach:

Too little expression of empathy with those who assume the goodness of current policy. Fear of change, competition, “other” are all deep. Too little about how current unjust system can be unwound in a way the mitigates any reality behind these fears. Too little about how benefits attributed to current unjust system can be maintained under a freedom respecting regime. (This doubt also applies to the intellectual freedom theme.)

Figuring out development might be more feasible, and certainly would have more impact on human welfare, individual autonomy, than smashing the international apartheid system. Local improvements to education, business, governance, are what all ought focus on — though development economics has a dismal record, it at least has the right target. Migration is a sideshow.

As with the intellectual freedom theme, these doubts merit engagement, and such will strengthen the case for freedom. But even moreso than in the case of intellectual freedom infringing regimes, the unconscionable and murderous injustice of the international apartheid regime must be condemned from the rooftops. It is sickening and unproductive to allow discourse on this topic to proceed as if the regime is anything but an abomination, however unfeasible its destruction may seem in the short term.

The main problem with this theme is omission rather than doubt — no solutions proposed. Had I done so, I’d have plenty to doubt.

Refutation

I fell behind, doing refuting only posts from first and second quarters of 2005. My doubt about this enjoyable exercise is that it is too contrived. Many of the refutations are flippant and don’t reflect any real doubts or knowledge gained in the last 8 years. That doubt is what led me to the exercise of this post. How did I do?